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New York Times; January 14, 2024


The Supreme Court sent a jolt through the criminal justice system this week by ruling that judges are not required to follow the federal sentencing guidelines.  The ruling, which makes the guidelines merely advisory, strikes a judicious balance between two conflicting interests: the goal of making sentences for similar crimes equivalent, and the desire to allow judges flexibility to take into account the circumstances of particular crimes and criminals.

There is already talk in Congress about trying to undo the Supreme Court's decision.  That would be a serious mistake.

Congress passed the sentencing guidelines in the mid-1980's, with bipartisan support, in an attempt to make criminal sentences in federal cases more uniform.  While the guidelines have been praised for doing just that, they have also been criticized for contributing to the nation's prison overpopulation.  Justice Anthony Kennedy, who is hardly a liberal on criminal justice issues, told the American Bar Association in 2003 that the sentencing guidelines were too harsh and inflexible.  Some trial judges have complained that the guidelines have unduly tied their hands, compelling them to impose sentences that they believe did not fit the crimes before them.

The guidelines became legally vulnerable last June when the Supreme Court struck down Washington State's sentencing guidelines.  The court ruled that they violated the Sixth Amendment because they required judges to take factors into account in sentencing, like the harm caused by the crime, that were never submitted to a jury.  Not unexpectedly, the court has now extended the logic of that decision to the federal guidelines.

What is most notable about this week's decision is that, rather than tossing out the federal guidelines completely, the court ruled that judges must still "consult" them in making sentencing decisions.  To ensure that this is not an empty formality, appeals courts will then review the sentencing decisions - and the use of the guidelines - for "reasonableness." It remains to be seen how this will work in practice, but the general idea of trying to impose uniformity but not rigidity is a good one.

In recent years, conservatives in Congress have complained about judges' failing to follow the guidelines, and Congress has taken steps to monitor individual judges' sentencing practices.  One leader of that effort criticized this week's ruling as an "egregious overreach." Rather than racing to try to limit or reverse the decision, its opponents should wait to see how it works in practice.  Otherwise, Congress could rush through ill-considered legislation that once again unduly tied judges' hands.

If the new procedures outlined by the court turn out to undermine substantially the goals of the sentencing guidelines and make federal punishments widely disparate and unfair, there will always be time later for Congress to consider enacting new legislation.  For now, everyone should step back and give federal trial judges - as they consult the sentencing guidelines and are reviewed by appellate courts - - a chance to show that they can exercise their discretion wisely.

“In too many cases, mandatory minimum sentences are unwise and unjust.”
- U.S. Supreme Court Justice Anthony Kennedy

If you agree…

Write Congress to tell them that mandatory minimums are unjust.